Harriram v. Fera

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

PRIYA HARRIRAM,

Plaintiff,

No. 21-CV-3696 (RA)

v.

MEMORANDUM

JOSEPH L. FERA, BRIAN WYNNE, DAWN

OPINION & ORDER

EWING-MORGAN, BRIDGET BARBERA,

CITY UNIVERSITY OF NEW YORK, and

LEHMAN COLLEGE,

Defendants.

RONNIE ABRAMS, United States District Judge:

This is one of numerous actions pro se Plaintiff Priya Harriram has filed against the City

University of New York (“CUNY”) and its employees. Here, Harriram sues Defendants Joseph

Fera, Brian Wynne, Dawn Ewing-Morgan, Bridget Barbera, CUNY, and Lehman College, for

violations of Title VII, Title IX, the New York State Human Rights Law (“NYSHRL”), and the

New York City Human Rights Law (“NYCHRL”). In a March 2023 Memorandum Opinion &

Order, the Court granted Defendants’ motion to dismiss Harriram’s Second Amended Complaint.

See Harriram v. Fera (“March 2023 Op.”), No. 21-CV-3696 (RA), 2023 WL 2647856 (S.D.N.Y.

Mar. 27, 2023).1 Three months later, the Court also dismissed a related lawsuit brought by

Harriram on the basis of res judicata because she had already lost a substantially similar case in

state court. Harriram v. Fera (“Harriram II”), No. 22-CV-3356 (RA), 2023 WL 4353824, at *1

1 In the March 2023 Opinion, the Court dismissed Harriram’s claims against Lehman College because

“Lehman College is a senior college within CUNY and has no separate legal existence.” March 2023 Op.

at *1 n.1 (quoting Ross v. State of New York, 2016 WL 626561, at *3 (S.D.N.Y. Feb. 16, 2016)). Because

Harriram offers no additional support as to why her claims against Lehman College should be resuscitated,

these claims are again dismissed.

(S.D.N.Y. June 30, 2023). On April 26, 2023, Harriram filed a Third Amended Complaint. See

Dkt. No. 90 (“Third Am. Compl.”). Now before the Court is Defendants’ motion to dismiss the

Third Amended Complaint. For the reasons that follow, the motion is granted.

BACKGROUND2

The Court assumes the parties’ familiarity with the factual background and procedural

history of this action, as detailed in the March 2023 Opinion, and summarizes only the most

pertinent facts here. See March 2023 Op. at *1-3. Harriram is a “West Indian/Caribbean” woman

from Trinidad who has spent time at CUNY as both a student and an employee. See Dkt. No. 56

(“Second Am. Compl.”) at 1-5. In her Second Amended Complaint, Harriram previously alleged

that she was denied an adjunct lecturer position in the math department at Lehman College in

February, March, and April of 2020 due to her race and national origin. Id. She also asserted that

Defendant Fera, a math professor at Lehman, harassed her and retaliated against her when she

refused his sexual advances. Id.

In March 2023, the Court granted Defendants’ motion to dismiss Harriram’s Second

Amended Complaint. It dismissed with prejudice her § 1981 claim against CUNY, her NYCHRL

claim against CUNY, and her retaliation claim under Title VII, but it gave Harriram “one more

opportunity to amend the Complaint” as to her other claims. March 2023 Op. at *10. In explaining

the deficiencies that led to the dismissal of those other claims, the Court noted, among other things,

that while Harriram’s failure to hire claim had identified purportedly less-qualified individuals

who were hired for the math adjunct position, she never “identif[ied] when they were hired.” Id.

2 The following facts are drawn from Harriram’s Third Amended Complaint and the attached exhibits

which, on a motion to dismiss, the Court must assume to be true. See Lynch v. United States, 952 F.3d 67,

74-75 (2d Cir. 2020). In light of Harriram’s pro se status, the Court also considers factual allegations made

in her prior court filings, including her Second Amended Complaint. See Washington v. Westchester

County Dep’t of Corr., 2015 WL 408941, at *1 n.1 (S.D.N.Y. Jan. 30, 2015); Trombetta v. Novocin, 414

F. Supp. 3d 625, 628 n.1 (S.D.N.Y. Oct. 2, 2019).

at *4. Harriram’s quid pro quo sexual harassment claim was similarly inadequate because she did

“not specify when [Fera’s alleged sexual harassment] took place, nor [did] she provide any further

factual allegations that could plausibly connect Fera’s [harassment] to his decision not to hire her.”

Id. Harriram’s Title VII hostile work environment claim could not proceed because she did “not

allege that she was employed at Lehman College” either when she applied for the math adjunct

position in 2020 or when Fera’s alleged sexual misconduct occurred. Id. at *6. She further failed

to assert conduct “severe or pervasive enough” to meet the hostile work environment standard

during the relevant time period. Id. (quoting Littlejohn v. City of New York, 795 F.3d 297, 320-21

(2d Cir. 2015)). Finally, Harriram’s NYCHRL retaliation claim against Fera was dismissed

because she did not allege “that Fera himself was aware of any of [her] complaints” or that Fera

“was involved in the decision to terminate her employment” in 2021. Id. at *9.3

Harriram filed her Third Amended Complaint in this action—the now operative

complaint—on April 26, 2023. See Third Am. Compl. Harriram adds three Defendants: CUNY

professor Brian Wynne, Title IX investigator Dawn Ewing-Morgan, and Bridget Barbera.4 Id.

She also asserts several new claims, including claims of discrimination, retaliation, and hostile

work environment based on her termination from her position as a College Assistant at Lehman

3 In April 2022, Harriram filed a separate lawsuit against Fera, Ewing-Morgan, Barbera, Lehman College,

CUNY, and Eric Washington, bringing Title VII, Title IX, and NYCHRL claims related to her 2021

termination from her position as College Assistant at Lehman College. In June 2023, the Court granted the

defendants’ motion to dismiss the complaint. Harriram II, 2023 WL 4353824, at *1. Harriram’s claims

were barred by res judicata because she had already litigated—and lost—an Article 78 case in state court

concerning that termination against the same defendants. Id.; see Harriram v. Washington, Barbera,

Lehman Coll., City Univ. of N.Y., Index No. 212/2022E (N.Y. Sup. Ct. Bronx Cnty. Jan. 18, 2022).

4 Although Harriram lists Barbera as a defendant in the case caption, the complaint does not mention

Barbera or allege any facts about her. Harriram thus fails to plead “factual content that allows the [C]ourt

to draw the reasonable inference that [Barbera] is liable for [any] misconduct alleged.” Any claims against

her must thus be dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

College in 2021, as well as state law claims under the NYSHRL. Id.; see Dkt. No. 102 (“Def.

Br.”) at 1-2.

In the Third Amended Complaint, Harriram alleges that she was a student at Lehman

College from 2013 through 2018, and that she became a part-time employee there in the fall of

2016. Third Am. Compl. at 11. According to Harriram, in 2013 she was “forced to perform oral

sex multiple[] times against [her] will after class with [Defendant] Fera.” Id. Fera would also

allegedly “stare at [her] breasts and fondle [her] hands” around 2016. Id. When Harriram later

applied for a position with the math department in February 2020, and handed Fera her resume,

Fera purportedly “started telling [her] to go somewhere else[.]” Id. Harriram also claims that

another professor, Defendant Brian Wynne, forced her to write on a notepad that was positioned

“on his crotch” during his office hours in 2017, which made her “extremely uncomfortable” and

feel “very violated.” Id. at 12. In October 2021, while Harriram maintained a “very small role as

a Part-Time worker” at Lehman College, she “decided to let the College know about the sexual

harassment.” Id. She asserts that Defendant Dawn Ewing-Morgan, a Title IX investigator,

“coerced” her into having a meeting about the sexual harassment and authored “an unfounded

investigative report,” which was “a lie.” Id. As a result, Harriram alleges that she was terminated

in November 2021 and, in particular, that Defendant Fera “got [her] fired from her job.” Id.

LEGAL STANDARD

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint

must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007).5 “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

5 Unless otherwise indicated, case quotations omit all internal citations, quotations, footnotes, omissions,

and alterations.

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To make that

determination, the Court must “accept as true all factual allegations … but [is] not required to

credit conclusory allegations or legal conclusions couched as factual … allegations.” Dane v.

UnitedHealthcare Ins. Co., 974 F.3d 183, 189 (2d Cir. 2020). Courts must “liberally construe

pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest

arguments they suggest.” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017).

But even pro se litigants must “state a claim to relief that is plausible on its face.” Mancuso v.

Hynes, 379 F. App’x 60, 61 (2d Cir. 2010).

“In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to

facts stated on the face of the complaint, in documents appended to the complaint or incorporated

in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F.

v. Israel Disc. Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999). Courts may, for example,

consider matters of public record, including state court documents and decisions. Quire v. City of

New York, 2021 WL 293819, at *3 (S.D.N.Y. Jan. 28, 2021); see Giraldo v. Kessler, 694 F.3d 161,

164 (2d Cir. 2012); Williams v. N.Y.C. Hous. Auth., 816 F. App’x 532, 534 (2d Cir. 2020) (on a

motion to dismiss, “[t]he district court did not err in considering [plaintiff’s] Article 78 petition

and state court decision because they were public records, and thus appropriate for judicial

notice.”).

“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000). “A plaintiff asserting subject matter jurisdiction

has the burden of proving by a preponderance of the evidence that it exists.” Id.

DISCUSSION

I. 2021 Termination Claims

Defendants argue that Harriram’s claims about her fall 2021 termination be dismissed due

to the doctrine of res judicata. The Court agrees.

“Under the doctrine of res judicata, a final judgment on the merits of an action precludes

the parties or their privies from relitigating issues that were or could have been raised in that

action.” New York v. Mountain Tobacco Co., 942 F.3d 536, 543 (2d Cir. 2019). “A federal court

must give to a state-court judgment the same preclusive effect as would be given that judgment

under the law of the State in which the judgment was rendered,” which here is New York. Id. A

party seeking to raise a res judicata defense “must show that (1) the previous action involved an

adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with

them; and (3) the claims asserted in the subsequent action were, or could have been, raised in the

prior action.” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 499 (2d Cir. 2014). Under New

York’s “transactional approach” to res judicata, a “later claim arising out of the same factual

grouping as an earlier litigated claim” is precluded “even if the later claim is based on different

legal theories or seeks dissimilar or additional relief.” Mountain Tobacco Co., 942 F.3d at 543.

In Harriram II, this Court dismissed substantially similar claims concerning Harriram’s

2021 termination. 2023 WL 4353824, at *2. There, the Court explained that the “elements of res

judicata [were] easily satisfied” because “[t]he Bronx Supreme Court [previously] adjudicated

Plaintiff’s Article 78 petition on the merits, resulting in the dismissal of her case, and the same

parties [were] involved in both actions.” Id. Here, Harriram’s claims once again “arise from

precisely the same facts as her Article 78 proceeding, namely, the sexual abuse allegedly

perpetrated by Professor Fera and Professor Wynne, the reports she submitted to CUNY …, her

subsequent meetings with Ewing-Morgan … and her [2021] termination.” Id. For the reasons

described in Harriram II, all claims arising out of Harriram’s 2021 termination are thus dismissed.6

II. 2020 Employment Application Claims

Harriram also re-asserts claims of retaliation, discrimination, and hostile work environment

related to her application for a math department position at Lehman College in 2020. Third Am.

Compl. at 11. Defendants argue that “despite the fact that [Harriram] enjoyed four opportunities

to attempt to plead her claims, she still fails to state a cause of action” because, among other

deficiencies, “her allegations are still devoid of facts sufficient to raise any inference of

discriminatory animus.” Def. Br. at 2-3.7 The Court agrees.

A. Title VII Retaliation Claim Against CUNY

For a retaliation claim to survive a motion to dismiss, “the plaintiff must plausibly allege

that: (1) defendants discriminated—or took an adverse employment action—against [her], (2)

because [she] has opposed any unlawful employment practice.” Duplan v. City of New York, 888

F.3d 612, 625 (2d Cir. 2018). In its March 2023 Opinion, the Court dismissed Harriram’s Title

VII retaliation claim for failure to exhaust administrative remedies. March 2023 Op. at *6.

Because the Court has not been presented with any reason to revisit this determination, the Title

VII retaliation claim is again dismissed.

6 To the extent that Harriram intends to bring claims against Ewing-Morgan outside the context of her 2021

termination, such claims are also dismissed due to her failure to plead facts that plausibly state a claim. See

Twombly, 550 U.S. at 570. All claims against Defendant Ewing-Morgan are therefore dismissed.

7 Defendants also argue that Harriram’s opposition brief “fails to address any of Defendants’ arguments”

and the Court should dismiss the Third Amended Complaint “in its entirety” because Harriram “has

abandoned her claims.” Dkt. No. 108 (“Def. Reply Br.”) at 1. The Court declines to do so on this basis.

A pro se plaintiff should not be presumed to have abandoned her claims because she did not address a

defendant’s specific arguments. See Tsismentzoglou v. Milos Estiatorio Inc., 2019 WL 2287902, at *2 n.3

(S.D.N.Y. May 29, 2019). “Implicit in the right to self-representation is an obligation on the part of the

court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important

rights because of their lack of legal training.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).

B. Title VII Discrimination Claims Against CUNY

1. Race-based Discrimination

Although Harriram brought claims of discrimination based on race and national origin in

her Second Amended Complaint, she no longer appears to do so.8 To the extent she still wishes

to pursue them, they must again be dismissed. In its March 2023 Opinion, the Court dismissed

Harriram’s Title VII discrimination claim because she failed to plead “any facts that plausibly give

rise to an inference of discrimination.” March 2023 Op. at *5. The Court similarly rejected her

42 U.S.C. § 1981 discrimination claims for two reasons. First, her § 1981 claims against CUNY

and Defendant Fera in his official capacity were barred by sovereign immunity. Id. at *7. Second,

her § 1981 claims against Fera in his individual capacity failed to state a claim for employment

discrimination. Id. For the same reasons as before, the Court again dismisses these claims.

2. Sex-based Discrimination

Harriram also asserts that Defendants discriminated against her based on sex, under two

discernible theories: failure to hire and quid pro quo sexual harassment.

“To plead a failure to hire claim under Title VII … the plaintiff must demonstrate that: (1)

[she] is a member of a protected class; (2) [she] applied and was qualified for a job for which the

employer was seeking applicants; (3) [she] was rejected despite being qualified; and (4) after this

rejection, the position remained open and the employer continued to seek applicants with [her]

qualifications.” Harris v. Oscar De La Renta, LLC, 2022 WL 16963480, at *4 (S.D.N.Y. Nov.

16, 2022). In its March 2023 Opinion, the Court dismissed this claim because Harriram made no

allegation that the math department position remained open after she was rejected. March 2023

Op. at *4. Harriram now again fails to allege that the position remained open after her rejection

8 Indeed, the Third Amended Complaint does not make any reference to her West Indian/Caribbean or

Trinidadian background.

or that Defendants continued to seek applicants with Harriram’s qualifications. Her discrimination

claim under a failure to hire theory is therefore dismissed for the same reasons as before. See

Quarless v. Bronx Lebanon Hosp. Ctr., 75 F. App’x 846, 848 (2d Cir. 2003).

“To state a quid pro quo claim, [the plaintiff] must show a ‘tangible employment action,’

i.e., that an ‘explicit alteration in the terms or conditions of employment’ resulted from her refusal

to submit to [the defendant’s] sexual advances.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d

597, 603 (2d Cir. 2006). To raise an inference of discrimination, a quid pro quo harassment claim

must establish a “causal connection” between the rejection of sexual advances and the employment

action. Cook v. N.Y.C. Dep’t of Educ., 90 F. App’x 562, 563 (2d Cir. 2004). A “close temporal

proximity” between the two events “constitute[s] evidence of a causal connection.” Papelino v.

Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 90 (2d Cir. 2011).

Here, Harriram alleges that she was forced by Fera to perform sexual acts “multiple times”

in 2013 and that Fera would stare at her breasts and fondle her hands around 2016. Third Am.

Compl. at 11. Harriram asserts that she rejected these advances in 2013 but that they continued

through 2016. Id. She further alleges that, four years later, in 2020, Fera refused to hire her. Id.

Although Harriram’s allegations of sexual misconduct are undoubtedly serious, she fails to

plausibly plead a causal connection between her rejection of the alleged sexual misconduct and

any tangible employment action.

Harriram has not alleged that Fera’s sexual advances were “sufficiently close in time to

any significant adverse employment action to establish a causal connection” between the two.

Cook, 90 F. App’x at 563. Indeed, even “[o]ne year is simply too long to find temporal proximity

in a quid pro quo [sexual harassment] case, especially where there are no allegations of any

negative intervening interactions.” See Figueroa v. Johnson, 109 F. Supp. 3d 532, 554 (E.D.N.Y.

2015), aff’d, 648 F. App’x 130 (2d Cir. 2016); Adeniji v. Admin. for Child. Servs., NYC, 43 F.

Supp. 2d 407, 433 (S.D.N.Y. 1999), aff’d, 201 F.3d 430 (2d Cir. 1999) (holding that the court

could not infer causation where eleven months passed “between [a plaintiff’s] alleged rejection of

[a defendant’s sexual advances] and his suspension and termination”). Therefore, like the Court

held in its March 2023 Opinion, it cannot infer causation because, between 2016 and 2020, over

four years passed without any alleged interactions between Harriram and Fera.9 See March 2023

Op. at *4-5. Harriram’s Title VII discrimination claim is therefore dismissed. See Lekettey v. City

of New York, 637 F. App’x 659, 661 (2d Cir. 2016); Littlejohn, 795 F.3d at 311.10

C. Title VII Hostile Work Environment Claim Against CUNY

“To establish a hostile work environment under Title VII, … a plaintiff must show that ‘the

workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently

severe or pervasive to alter the conditions of the victim’s employment and create an abusive

working environment.’” Littlejohn, 795 F.3d at 320-21 (quoting Harris v. Forklift Sys., Inc., 510

U.S. 17, 21 (1993)). “A hostile work environment ‘is actionable … only when it occurs because

of an employee’s sex, or other protected characteristic.” Bliss v. MXK Rest. Corp., 220 F. Supp.

3d 419, 423 (S.D.N.Y. 2016).

A plaintiff alleging a hostile work environment based on sexual harassment must also

demonstrate “a sufficient basis for imputing the conduct that created the hostile environment to

9 Like in her Second Amended Complaint, Harriram has also failed “to plausibly plead a causal connection”

because she has not asserted any non-conclusory facts that could offer a “direct link” to Fera’s “decision

not to hire her.” March 2023 Op. at *4-5. Harriram’s Third Amended Complaint provides no additional

allegations that alter the Court’s previous analysis.

10 To the extent Harriram seeks to allege a Title IX claim against Fera, this claim is also dismissed for the

reasons stated in the March 2023 Opinion. See March 2023 Op. at *7-9. See also Papelino, 633 F.3d at 89

(“[A] Title IX sex discrimination claim requires the same kind of proof required in a Title VII sex

discrimination claim.”).

her employer.” Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001). “Where the

harassment was done by a co-employee without supervisory authority over the plaintiff, liability

will be imputed to the employer only if it is negligent, that is, if it either provided no reasonable

avenue for complaint or knew of the harassment but did nothing about it.” Id. The

“appropriateness of an employer’s remedial action must be assessed from the totality of the

circumstances.” Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 153 (2d Cir. 2014); see Distasio

v. Perkin Elmer Corp., 157 F.3d 55, 65 (2d Cir. 1998) (noting that whether an employer’s

“response was reasonable has to be assessed from the totality of circumstances”). Thus, whether

a particular response is reasonable “will vary from case to case.” Torres v. Pisano, 116 F.3d 625,

639 (2d Cir. 1997); see Murray v. New York Univ. Coll. of Dentistry, 57 F.3d 243, 249 (2d Cir.

1995).

In its March 2023 Opinion, the Court dismissed Harriram’s hostile work environment claim

against CUNY because she failed to assert that she was employed by CUNY during the relevant

time period; she did not allege conduct “severe or pervasive enough” to meet the hostile work

environment standard during the relevant period; and she failed to plausibly assert that any such

conduct was “because of” a protected characteristic. March 2023 Op. at *6. Although the Third

Amended Complaint now states that Harriram was employed part-time by CUNY from 2016

through 2021, her hostile work environment claim still fails.

In particular, Harriram fails to establish a sufficient basis for imputing Fera’s alleged

conduct to her employer. Ferris, 277 F.3d at 136. Harriram does not assert that Fera had

“supervisory authority” over her when she worked for CUNY as a College Assistant. Id. Nor

does she aver that her employer “provided no reasonable avenue for complaint” about the alleged

harassment or otherwise “did nothing about it.” Id. To the contrary, Harriram herself asserts that

“around October 2021 [she] decided to let the College know about the sexual harassment,” that

CUNY’s Title IX coordinator met with her to discuss the allegations, and that the coordinator

issued an investigative report later that year.11 Although Harriram disagrees with its findings, see

Third Am. Compl. at 12, a plaintiff “does not have the right to choose an employer’s remedial

action,” Paul v. Postgraduate Ctr. for Mental Health, 97 F. Supp. 3d 141, 176 (E.D.N.Y. 2015).

CUNY also took other remedial steps to address the alleged harassment. For instance, CUNY “set

forth several no contact orders” and took other measures to separate Harriram from Fera. See

Third Am. Compl. at 13.12 Considering the totality of circumstances, Harriram has not plausibly

alleged “that a specific basis exists for imputing the conduct that created the [alleged] hostile

environment to the employer.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997). Her

Title VII hostile work environment claim must thus be dismissed.

D. NYCHRL and NYSHRL Claims Against CUNY and Defendant Fera

Harriram also asserts several claims under the New York State Human Rights Law

(“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”), appearing to allege

retaliation, discrimination, and hostile workplace claims against CUNY and Fera.

11 The investigative report concluded that Harriram’s account of sexual misconduct was a “work of fiction.”

See Harriram v. Washington, Barbera, Lehman Coll., City Univ. of N.Y., Index No. 212/2022E (N.Y. Sup.

Ct. Bronx Cnty. Jan. 18, 2022) at 5. The state court that considered and denied Harriram’s Article 78

petition also noted that Lehman College “thoroughly investigated” Harriram’s claims, including by hiring

a forensic linguistics expert, interviewing witnesses identified by Harriram, and speaking with Harriram in

the presence of a community representative. Id. at 6. The Court takes judicial notice of this document,

“not for the truth of the matters asserted … but rather to establish the fact of such litigation and related

filings.” Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991).

12 Indeed, New York public schools often employ no contact orders in cases involving allegations of sexual

misconduct or discrimination, and they primarily serve a safety function. See Doherty v. Bice, 2020 WL

5548790, at *2 (S.D.N.Y. Sept. 16, 2020). In a typical order, “if the accused and complainant observe each

other in a public place, it is the responsibility of the accused to leave the area immediately and without

directly contacting the complainant.” Id. (quoting SUNY Purchase’s no contact policy).

1. NYCHRL and NYSHRL Claims Against CUNY

In its March 2023 Opinion, the Court dismissed Harriram’s NYCHRL claims against

CUNY because such claims were barred by sovereign immunity. March 2023 Op. at *8. Harriram

has since provided no justification to revisit this determination, so these claims are again

dismissed.

In the Third Amended Complaint, Harriram brings additional NYSHRL claims against

CUNY. But CUNY is considered an “arm of the state,” which means that “suits against CUNY

are equivalent to suits against the State of New York and are therefore barred by the Eleventh

Amendment” where applicable. Clissuras v. City Univ. of N.Y., 359 F.3d 79, 83 (2d Cir. 2004).

Because New York State has not consented to suit under NYSHRL in federal court, see Purdie v.

City Univ. of New York, 2015 WL 129552, at *4 (S.D.N.Y. Jan. 8, 2015), the Court dismisses these

claims against CUNY.

2. NYCHRL and NYSHRL Claims Against Fera in his Official Capacity

In its March 2023 Opinion, the Court also dismissed Harriram’s NYCHRL claims against

Fera in his official capacity because they were barred by sovereign immunity. March 2023 Op. at

*8. For the same reasons, these claims are again dismissed.

In the Third Amended Complaint, Harriram appears to bring additional NYSHRL claims

against Fera. Because sovereign immunity “extends to state employees acting in their official

capacities,” Edwards v. N.Y. State Off. of Mental Health, 2017 WL 666227, at *9 (E.D.N.Y. Feb.

20, 2017), these claims are dismissed to the extent they are brought against Fera in his official

capacity.

3. NYCHRL and NYSHRL Claims Against Fera in his Individual Capacity

Sovereign immunity does not protect state officials who are sued in their individual

capacities. Chinn v. City Univ. of N.Y. Sch. of L. at Queens Coll., 963 F. Supp. 218, 225 (E.D.N.Y.

1997). The Court nevertheless dismisses Harriram’s remaining NYCHRL and NYSHRL claims

against Defendant Fera in his individual capacity.

a. NYCHRL and NYSHRL Retaliation Claims Against Fera in his

Individual Capacity

The Court previously dismissed Harriram’s NYCHRL retaliation claim against Fera in his

individual capacity because she did “not plausibly allege that Fera was involved in the alleged

retaliation she experienced after her reports of sexual misconduct.” March 2023 Op. at *9. It now

appears that Harriram has withdrawn any NYCHRL retaliation claim against Fera. To the extent

she still wishes to pursue it, the claim must be dismissed for the same reasons as before. Because

Harriram does not allege that Fera retaliated against her for participating in protected activity,

Harriram fails to state a claim. See Soloviev v. Goldstein, 104 F. Supp. 3d 232, 253 (E.D.N.Y.

2015).

Harriram’s NYSHRL retaliation claim against Defendant Fera in his individual capacity

must also be dismissed because “the same standards govern retaliation claims” under Title VII and

NYSHRL. Farmer v. Shake Shack Enters., LLC, 473 F. Supp. 3d 309, 330 (S.D.N.Y. 2020). Since

Harriram does not plausibly allege “a causal connection between [a] protected activity and [any]

adverse employment action [taken by Fera]” id., she also fails to state a claim under NYSHRL.

See March 2023 Op. at *9.

b. NYCHRL and NYSHRL Discrimination Claims Against Fera in his

Individual Capacity

The Court also previously dismissed Harriram’s NYCHRL discrimination claim against

Fera in his individual capacity. See March 2023 Op. *8. Although the pleading standard under

the NYCHRL is more liberal than Title VII, Harriram failed to state a claim under either statute.

Id. (citing White v. Bridge Inc., 2019 WL 4805896, at *5 (S.D.N.Y. Sept. 30, 2019)). In rejecting

her failure to hire and quid pro quo sexual harassment theories, the Court found that Harriram did

not plausibly “allege facts giving rise to an inference of discrimination.” Id. (quoting Moore v.

Verizon, 2016 WL 825001, at *8 (S.D.N.Y. Feb. 5, 2016)). For the same reasons, the Court now

dismisses her NYCHRL discrimination claim against Fera. See Bermudez v. City of New York,

783 F. Supp. 2d 560, 577 (S.D.N.Y. 2011).13

Claims of discrimination under NYSHRL are analyzed under the same framework as those

under Title VII. Kirkland-Hudson v. Mount Vernon City Sch. Dist., 665 F. Supp. 3d 412, 449

(S.D.N.Y. 2023) (citing Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 74-75 (2d Cir. 2016)).

Therefore, for the reasons discussed above in the Court’s Title VII analysis, Harriram’s NYSHRL

discrimination claim is also dismissed.

c. NYSHRL Hostile Work Environment Claim Against Fera in his

Individual Capacity

Finally, because “[s]exual harassment claims brought under a hostile work environment

theory under the NYSHRL are judged by the same standard as their federal counterparts in Title

13 To the extent Harriram seeks to assert a NYCHRL claim against Fera based on a hostile work

environment theory, this claim is also dismissed. “NYCHRL does not differentiate between discrimination

and hostile work environment claims, which means that this Court should perform the same analysis on

Plaintiff’s hostile work environment claim as it does on [her] discrimination claim.” Konteye v. New York

City Dep’t of Educ., 2019 WL 3229068, at *7 (S.D.N.Y. July 18, 2019); see Sotomayor v. City of New York,

862 F. Supp. 2d 226, 261 (E.D.N.Y. 2012), aff’d, 713 F.3d 163 (2d Cir. 2013). Accordingly, this claim is

also dismissed for the reasons stated in the March 2023 Opinion. See March 2023 Op. *8.

VII,” McHenry v. Fox News Network, LLC, 510 F. Supp. 3d 51, 65 (S.D.N.Y. 2020), Harriram’s

remaining NYSHRL claim is dismissed for the reasons discussed in the Court’s analysis of her

Title VII claim.

All of Harriram’s NYCHRL and NYSHRL claims against CUNY and Fera are therefore

dismissed.

III. 2017 Incident Involving Defendant Wynne

In the Third Amended Complaint, Harriram alleges that a different CUNY math professor,

Defendant Brian Wynne, made her “extremely uncomfortable” and feel “very violated” when he

forced her to write on a notepad that was positioned “on his crotch” in 2017. Third Am. Compl.

at 11-12. She also alleges that, in 2017, Wynne would touch her inappropriately and look at her

cleavage. Id. Harriram appears to assert Title VII, Title IX, NYCHRL, and NYSHRL claims

against Wynne. Defendants argue that Harriram’s claims against Wynne must be dismissed as

untimely and due to her failure to exhaust administrative remedies. Def. Br. at 23-25. The Court

agrees.

A. Title VII Claims

The Court dismisses Harriram’s Title VII claims about Defendant Wynne for failure to

exhaust administrative remedies. “As a precondition to filing a Title VII claim in federal court, a

plaintiff must first pursue available administrative remedies and file a timely complaint with the

EEOC.” Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486, 489 (2d Cir. 2018); see 42 U.S.C.

§ 2000e–5(e). As an initial matter, the Court rejects Defendants’ argument that the Court lacks

jurisdiction to consider Harriram’s claims concerning Wynne. To the contrary, Title VII’s charge-

filing requirement is “not jurisdictional” but rather a procedural “claim-processing rule.” Fort

Bend Cnty. v. Davis, 139 S. Ct. 1843, 1846-851 (2019) (“Title VII’s charge-filing requirement is

a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the

adjudicatory authority of courts.”).

Harriram’s claims, however, must still be dismissed. Harriram’s previous EEOC charge

of discrimination contains no allegations about Wynne, and Harriram does not allege that she filed

another EEOC complaint about Wynne’s conduct. Further, her claims against Wynne are not

“reasonably related” to her EEOC charge because they concern a different defendant, and Harriram

has never alleged that Wynne played any role in Defendant Fera’s decision to deny her

employment application. See Stewart v. U.S. I.N.S., 762 F.2d 193, 198 (2d Cir. 1985). Because

the allegations about Wynne could not “reasonably [have been] expected to grow out of the [prior]

charge of discrimination,” Smith v. Am. President Lines, Ltd., 571 F.2d 102, 107 n.10 (2d Cir.

1978), her claims are dismissed. See Felton v. Monroe Cmty. Coll., 579 F. Supp. 3d 400, 414

(W.D.N.Y. 2022).

B. Title IX Claims

To the extent Harriram seeks to assert a Title IX claim based on alleged sexual harassment

by Defendant Wynne, this claim is untimely. Title IX has been recognized as “encompassing

teacher-on-student hostile educational environment sexual harassment.” Hayut v. State Univ. of

N.Y., 352 F.3d 733, 750 (2d Cir. 2003). “When a teacher sexually harasses a student, that teacher

‘discriminates on the basis of sex’ in violation of Title IX.” Kracunas v. Iona Coll., 119 F.3d 80,

86 (2d Cir. 1997). To succeed, a “Title IX plaintiff must show that [she] subjectively perceived

the environment to be hostile or abusive and that the environment objectively … was permeated

with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the

conditions of [her] educational environment.” Papelino, 633 F.3d at 89.

In New York, a three-year statute of limitations applies to this claim. See id.; Curto v.

Edmundson, 392 F.3d 502, 504 (2d Cir. 2004). Harriram alleges that Wynne harassed her in the

fall of 2017 and that she waited until 2021 to “let the College know about the sexual harassment.”

Third Am. Compl. at 11-12. Because Harriram does not claim that any harassment occurred after

2017, her Title IX claim must be dismissed. Even assuming that Wynne’s alleged harassment

occurred through December 31, 2017, Harriram’s Title IX claim against Wynne would have

expired on August 15, 2021.14 But Harriram waited until July 14, 2023 to raise any allegations

against Wynne in this action. See Third Am. Compl. at 12. Her claim is thus dismissed as

untimely.15

C. NYCHRL and NYSHRL Claims

Finally, to the extent Harriram seeks to bring a NYCHRL or NYSHRL claim against

Defendant Wynne in his personal capacity, these claims are also barred by New York’s three-year

statute of limitations. See Russo v. N.Y. Presbyterian Hosp., 972 F. Supp. 2d 429, 445 (E.D.N.Y.

2013). Although this statute of limitations “is tolled for the period between the filing of an EEOC

charge and the issuance by the EEOC of a right-to-sue letter,” DeNigris v. N.Y.C. Health & Hosps.

Corp., 861 F. Supp. 2d 185, 192 (S.D.N.Y.2012), Harriram does not allege that she brought an

EEOC charge concerning Wynne’s conduct. And, even if the Court were to toll the period between

14 This calculation incorporates a State executive order that tolled the applicable period for 228 days, from

March 20, 2020 through November 3, 2020. See Bell v. Saunders, 2022 WL 2064872, at *4 (N.D.N.Y.

June 8, 2022).

15 Harriram maintains that her claims are not time-barred due to the “continuing violation doctrine.” See

Dkt. No. 110 (“Pl. Sur-Reply Br.”) at 2. The Court disagrees. “[U]nder the continuing violation doctrine,

a plaintiff may bring claims for discriminatory acts that would have been barred by the statute of

limitations” when, for instance, a discriminatory act “was part of a continuing course of conduct that began

with [that defendant’s] earlier sexual advances.” Papelino, 633 F.3d at 91. But no “continuing” conduct

is alleged here, where Harriram asserts a sole, discrete act by Defendant Wynne. Indeed, Harriram does

not state that Wynne ever interacted with her before or after the fall of 2017. Nor does she point to a single

act by Wynne that took place within the statute of limitations. The continuing violation doctrine is therefore

inapplicable. See Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001).

Harriram’s November 2020 EEOC charge and the EEOC’s March 2021 right-to-sue letter, her

claims would still be untimely.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is granted in full. The Court has

now given Harriram three opportunities to amend her pleadings, including “one more opportunity

to amend the Complaint” after the Court’s March 2023 Opinion. March 2023 Op. at *10. Due to

Harriram’s “failure to cure deficiencies by amendments previously allowed,” Foman v. Davis, 371

U.S. 178, 182 (1962), her claims are dismissed with prejudice. See Metzler Inv. Gmbh y. Chipotle

Mexican Grill, Inc., 970 F.3d 133, 147 (2d Cir. 2020). The Clerk of Court is respectfully directed

to terminate the motion pending at Dkt. No. 101 and close this case.

Dated: March 8, 2024 ff /

New York, New York fk. 4

A“ ——__

Hon. Ronnie Abrams

United States District Judge

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